upon the recommendation of the Board of Estimate and Apportionment, to fix the salary of any officer or person whose compensation is paid out of the city treasury, irrespective of the amount fixed by this act, except that no change shall be made in the salary of an elected officer or head of a department during the term for which he was elected or appointed."

1

* *

The Amendatory Act of 1901, assuming a different theory of administration, cut off the power of the individual heads of departments over salaries. Section 56 was continued and amplified. One phrase was altered: instead of stating " the municipal assembly shall have power *" it was made to read, "it shall be the duty of the board of aldermen *." One phrase was qualified by the addition of an important exception: after the words, "officer or person whose compensation is paid out of the city treasury," the act of 1901 added, “other than day laborers, and teachers, examiners and members of the supervising staff of the department of education." In addition to these changes, the Amendatory Act of 1901 added provisions which regulated the exercise of the power in two respects. It stated that salaries need not be uniform throughout the several boroughs, but it stipulated the facts which should govern the variation. In the second place, it curtailed the relative power of the Board of Aldermen in salary-fixing, by providing, first, that it should have power only to reduce the salaries recommended by the Board of Estimate and, second, that the Mayor might veto each reduction separately, although many salaries were considered together, and that, unless overriden by a three-fourths vote, such veto would give effect to the recommendation of the Board of Estimate. The section, as amended, closed with the express proviso: "All salaries as fixed on the first day of January, nineteen hundred and two, shall continue in force until fixed by the board of aldermen as in this section provided." As thus reshaped, section 56 has remained unchanged in its permanent

'The Charter Revision Commission's draft proposed making an exception only of day laborers; the other exceptions were added in the Legislature.

aspects. One amendment was added in 1902,' applicable only in the framing of the budget of 1902, which, as a measure of transition to the new charter, temporarily gave the power over salaries to the Board of Estimate alone. The power itself was not affected.

Early Ambiguities.

The report of the Charter Revision Commission of 1900 shows that it was aware of uncertainties in the original phraseology of the section, as found in the Greater New York Charter. The Commission, moreover, was not blind to the fact that uncertainty offered a welcome excuse when, caught between the general public and groups of interested city employees,' both city and state were loath to admit responsibility in the precarious

1L. 1902, ch. 435, approved Apr. 8. The change of jurisdiction made by it terminated May 1, 1902. A complementary measure, L. 1902, ch. 436, amended sec. 10, relating to expenses of the city for the years 1898 and 1902." It may be noted, in passing, that the Inferior Criminal Courts Act, L. 1910, ch. 659, sec. 104, made a limited application of conditional repeal, stating in part: "The salaries of all justices, magistrates, officers and employees of the Court of Special Sessions and of the City Magistrates' courts shall continue as they exist at the time this act shall take effect, unless and until thereafter changed by the Board of Aldermen upon the recommendation of the Board of Estimate and Apportionment, subject to the veto of the Mayor." Other provisions, which cannot be repeated, limited the scope of this in so far as it applied to the justices. So, too, L. 1915, ch. 581, relating to the Municipal Court, amended sec. 1373 of the charter to read in part: “The Board of Estimate and Apportionment shall, on the recommendation of the board of justices prescribe the number of assistant clerks, stenographers, interpreters, attendants and other employees of the said court for each borough and shall fix their respective salaries, except as herein specifically provided." The salaries of a number of the grades were, however, stated in the amended section.

The Commission remarked: "One of the great evils of our municipal system has been the organized importunity practiced on the Legislature by large classes of city employees. The practice is an evil in itself, is demoralizing to the force, and it operates to relieve the local authorities of that responsibility which ought to be always fastened upon them." Therefore the Commission proposed to extend existing provisions of the charter which prohibited uniformed members of the police and fire departments from membership in associations intended to affect legislation. Report of the Charter Revision Commission, Dec. 1, 1900, pp. 46-7. For the pre-existing provisions, see secs. 306 (police) and 739 (fire). The Commission's recommendation was carried out in secs. 536 (street cleaning) and 1099 (education), but was not adopted in sec. 1195 (health).

question of salary control. After stating that the increase of salaries had been the most important factor' in a dangerous swelling of city expenditures since the formation of the Greater City, the report continued:"

"Unfortunately, it is not possible to fix responsibility for this condition. The local authorities, upon whom responsibility ought justly to rest, point to the fact that in many cases, involving numerous officials, salaries have been raised against their protest by the action of the State authorities. The State authorities, on the other hand, are able to point to a provision in the existing Charter, empowering the Municipal Assembly, upon the recommendation of the Board of Estimate and Apportionment, to fix the salary of any officer of the City Government, whether provided for in the Charter or not. A condition of things under which such extravagant increases in the ordinary expenses of the City are possible, and under which it is impracticable to hold either City or State officers responsible, ought not to continue. It has seemed to the Commission that the power of determining the amount of salaries to be paid ought to be vested absolutely in the officials chosen by the voters of the city itself, and that it is most unfortunate that any action in regard to such a matter should be taken by the representatives of other and distant localities.

"We have therefore recommended that the powers already conferred upon the Board of Estimate and Apportionment and the Municipal Assembly shall be extended so that it shall no longer be merely within the power of the City legislature, but it shall also be its duty, to fix the salary of every person who draws pay from The City of New York. We propose to take

'An indication of a current attitude of up-State leaders was given in Gov. Odell's message to the Legislature, Jan. 1, 1902: "In looking over the salary list of the City of New York, it will be found there are several officials who receive a larger salary than the Governor of the State or the cabinet officers of the United States." Although, he said, interference in city government was as a general rule undesirable, he recommended "action by the Legislature which will absolutely fix a percentage based upon the total tax levy for the salary lists of all municipalities." Ex. Jour., in Appendix to N. Y. Sen. Jour., 1902, vol. 2, p. 16.

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Report of the Charter Revision Commission (to the Governor of the State of N. Y.,) with proposed amendments, etc., Dec. 1, 1900, pp. 48-9.

away absolutely from every head of department the power to fix the salaries of his own subordinates-a power which has led to flagrant abuses in the past.

"These provisions, coupled with the abolition of the Board of Public Improvements, and the present costly system of deputies and branch offices in the various boroughs should, we believe, lead to early and substantial reductions in salaries, and to an intelligent classification of subordinates throughout the whole city. Even if it does not, the voters of the city will know whom to blame; and they will have full power and authority, if they choose, to secure through a change of administration a change of policy in this regard."

The Uncertain Scope of the Provision as Revised in 1901.

Unfortunately the revision of 1901 did not remove the uncertainties in section 56. There was no clarifying magic in the substitution of the phrase, "it shall be the duty of," for the words, "shall have power." A two-fold ambiguity continued to lurk in the vital clause, "irrespective of the amount fixed by this act." (1) Did conditional repeal extend to salaries stated in special laws which were not included in the charter, some of which were and some of which were not included in the unsuperseded parts of the Consolidation Act of 1882? (2) Did conditional repeal extend to salaries stated in statutes enacted after January 1, 1902? The second problem had several phases. Could the city authorities change the salary of an office which had existed under the law prior to 1902, if the stated salary had been subsequently altered by charter amendment or other special act of the legislature? Could the city authorities change the salary of an office which had existed in law prior to 1902, if any statutory provisions relating to it had been altered, although without affecting the original salary? Could the city authorities change the salary of an office created after 1902 by a statute which had also stated the amount of compensation?

It is somewhat strange that all doubtful points under section 56 have not been adjudicated. A provision which governs

the control over salaries touches the self-interest of many; one might have expected that every possible situation would be brought to the courts for decision. Litigation has been more than abundant on certain aspects of the matter, especially in connection with control over salaries in the semi-autonomous departments of city government. Yet as late as 1915 it was necessary for the Corporation Counsel to undertake, with an admission of doubt, the answer of the questions which have been outlined in the preceding paragraph. His brief opinion must be our main reliance.

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Two cases which approached the problem of conditional repeal as applied to salaries, but which did not come decisively to grips with it, may first be examined. They concerned related, but different, provisions. Baker v. City of New York' arose under the charter of 1897. It involved the fees of the stenographer employed by the coroners in each borough under a section of the charter which, unlike the previous provision on this point in the Consolidation Act, said nothing about compensation. Hamburger v. Board of Estimate' arose under the Charter of 1901. It involved the office of coroner's clerk, established by the same section; whereas the Consolidation Act had stated the salary of clerk, the charter, in mentioning this office, expressly stated that the clerk should receive "an annual salary to be fixed by the board of estimate and apportionment and the board of aldermen." The first case involved an attempt to collect the fees for transcripts which the Consolidation Act had stipulated in addition to the salary; the second, an attempt to compel the payment of the salary named in the Consolidation Act instead of a lower amount fixed by ordinance. The question in both cases was whether the provisions of the Consolidation Act regarding the compensation of these offices were still in effect. Section 56 was incidentally discussed, but its bearing was weak

1

1 (1900) 56 App. Div. 350, 67 N. Y. Supp. 814.

'Sec. 1571 in both L. 1897, ch. 378 and L. 1901, ch. 466, subsequently repealed by L. 1915, ch. 284, in effect Jan. 1, 1918, which abolished the

coroners.

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(1905) 109 App. Div. 427, 96 N. Y. Supp. 130, appeal dism'd 184 N. Y. 577.